Judge Rules Psychologist's Tapes Can Be Used in Murder Trial

LINDA DEUTSCH

Aug. 07, 1990

SANTA MONICA, Calif. (AP) _ Conversations between a psychologist and two brothers after their parents were slain can be allowed as evidence in the brothers' murder case, a judge ruled Monday.

Superior Court Judge James Albracht said the psychologist, L. Jerome Oziel, had believed Erik and Lyle Menendez made threats during their psychotherapy sessions with him and it was necessary to disclose their conversations to prevent danger.

Albracht said that such a threat constitutes an exception to the psychologist-patient privilege and the exception applies to all taped conversations between the brothers and their therapist.

The tapes of counseling sessions ''concern the brothers' emotional and psychological state after the murder of their parents,'' Albracht said.

The brothers are charged with shooting to death their parents, Jose and Kitty Menendez, in the family's Beverly Hills mansion last Aug. 20.

Prosecutors say the gruesome shotgun slayings were prompted by the brothers' greedy hurry to collect their parents' $14 million fortune. Jose Menendez was president of Live Entertainment, a video production company.

Erik, 19, and Lyle, 22, who have pleaded innocent, remain in jail without bail. They could face the death penalty if convicted.

The murders, in the heart of plush Beverly Hills, remained a mystery for six months until police arrested the brothers. At one point there were rumors Menendez and his wife were victims of a Mafia execution.

There was a stunned gasp in the courtroom from the Menendez family as the judge announced his ruling.

The grandmother, aunts and uncles of the defendants have attended all of the hearings. Erik and Lyle Menendez, clad in blue jail uniforms, exchanged glances with their relatives as they were led in and out of court.

''If the judge's ruling is upheld it brings a virtual end to the psychotherapist-patient privilege,'' said defense attorney Leslie Abramson.

Albracht did not give the legal basis for his ruling and said he would seal his written opinion until Aug. 15. He said defense attorneys could seek an appeals court order before that to have the decision sealed permanently.

Defense lawyers, claiming the conversations are privileged, said they would appeal to prevent the tapes from being used in the brothers' prosecution.

He said the law required that the tapes be kept confidential and that even the prosecutors could not hear them or know what was in them until the matter was resolved.

The prosecutor, Deputy District Attorney Elliott Alhadeff, said he felt the tapes contained ''very important evidence, but it is not crucial to the case.'' The judge said months of hearings on the issue were exceptionally complex.

Ms. Abramson said Albracht based his ruling on a recent court decision that held that if a psychotherapist discusses a patient's statements with someone else the privilege disappears.

But other courts have held that the privilege belongs to the patient, not the therapist, she said.

''The therapist cannot simply be a gossip or a liar - which we claim in this case - to make the privilege disappear,'' she said. ''In my opinion, Dr. Oziel was less than credible with this court.''